Schenck v. United States 1919

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Schenck v. United States 1919

Appellant: Charles T. Schenck

Appellee: United States

Appellant's Claim: That his speech was protected by the First Amendment.

Chief Lawyers for Appellant: Henry J. Gibbons, Henry John Nelson

Chief Lawyers for Appellee: John Lord O'Brian

Justices for the Court: Louis D. Brandeis, John Hessin Clarke, William Rufus Day, Oliver Wendell Holmes (writing for the Court), Charles Evans Hughes, Joseph McKenna, James Clark McReynolds, Willis Van Devanter, Edward Douglass White

Justices Dissenting: None

Date of Decision: March 3, 1919

Decision: Schenck's speech was not protected by the First Amendment and his conviction under the Espionage Act was upheld

Significance: This case marked the first time the Supreme Court ruled directly on the extent to which the U.S. government may limit speech. The opinion written by Justice Oliver Wendell Holmes produced two of that famous justice's most memorable and most often quoted statements on the law.

The Socialist party opposes the draft

On June 15, 1917, just after the United States entered World War I (1914–18), Congress passed the Espionage Act. This made it a federal crime to hinder the nation's war effort. The law was passed shortly after the Conscription Act that was passed on May 18, 1917. The Conscription Act enabled the government to draft men for military service.

At this time a political organization existed in America called the Socialist party. It pushed for government ownership of factories, railroads, iron mines, and such. At a meeting at the party's headquarters in Philadelphia, Pennsylvania, in 1917, its leaders decided to print 15,000 leaflets. The leaflets were to go to men who had been drafted. The pamphlets included words from the first part of the Thirteenth Amendment to the Constitution, which reads:

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction.

The leaflets went on to state that a draftee was like a criminal convict. They felt that drafting men, called conscription, was an unfair use of the government's authority. The leaflets further read, "Do not submit to intimidation," and urged readers to petition the government to repeal, or cancel, the Conscription Act. The message in the pamphlets also suggested that there was a conspiracy between politicians and the press. The party felt people were helping the conspiracy by not speaking out against the conscription law.

Charles T. Schenck

As general secretary of the Socialist party, Charles T. Schenck was in charge of the Philadelphia headquarters that mailed the leaflets. Officials arrested him. They charged him with conspiring to cause a rebellion in the armed forces, and getting in the way of the recruitment and enlistment of troops. Congress had made these acts crimes under various "sedition" laws. (Sedition is any illegal action that attempts to disrupt or overthrow the government.)

The government, however, produced no evidence that Schenck had influenced even one draftee. Instead, the prosecutors considered the publication of the pamphlets enough proof of his guilt.

The defense presented a simple argument: Schenck had exercised a right guaranteed by the First Amendment. This is the right to speak freely on a public issue. Nonetheless, the court found him guilty. Schenck then appealed to the federal courts and finally to the U.S. Supreme Court. All along he insisted on his right to freedom of speech.

Schenck's defense lawyer argued to the Supreme Court that there was not enough evidence to prove that Schenck mailed out the leaflets. Justice Oliver Wendell Holmes reviewed the testimony in the case. He pointed out that Schenck was the general secretary of the Socialist party, and was in charge of the headquarters that mailed the pamphlets. Justice Holmes noted that the general secretary's report of August 20, 1917 read, "Obtained new leaflets from printer and started work addressing envelopes." Justice Holmes also pointed out that Schenck was to receive $125 for mailing the leaflets. Justice Holmes concluded that "No reasonable man could doubt that the defendant Schenck was largely instrumental in sending the circulars about."

"Clear and Present Danger"

Justice Holmes wrote the opinion that all of the justices signed. Noting that prosecutors had not shown that the leaflets had caused any revolt, he pointed out that the pamphlets were mailed because they "intended to have some effect." He said the effect that was intended was to influence people subject to the draft from not participating in it.

Justice Holmes agreed with the defense that the leaflets deserved First Amendment protection, but only in peacetime—not in wartime. In one of his most memorable statements on the law he said:

We admit that in many places and in ordinary times the defendants in saying all that was said . . . would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent [strongest] protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.

In another of the justice's memorable phrases he said:

The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive [actual] evils that Congress has a right to prevent.

Justice Holmes said the "clear and present danger," is a question of "proximity and degree." When a nation is at war, things that might be said in time of peace become obstacles to the nation's effort. Such things will not be endured so long as men fight, and no court could consider them protected by any constitutional right.

Finally, Justice Holmes observed, it made no difference that Schenck and his associates had failed to get in the way of military recruiting. "The statute," he said, "punishes conspiracies to obstruct [block] as well as actual obstruction." Justice Holmes said that the way a paper is circulated and the purpose for which it is done need not have successful results to make the act a crime.

With that, the Supreme Court upheld the judgment of the lower courts. Charles T. Schenck had been sentenced to spend ten years in prison for each of the three counts charged against him, which meant thirty years behind bars. (However, he served the three terms at the same time and actually spent a total of ten years in jail.)

The Schenck case, in establishing the "clear and present danger" test, marked a turning point in First Amendment free speech cases. Until then, Chief Justice Edward White and other justices had permitted the government to silence any speech that displayed a "dangerous tendency."


J ustice Oliver Wendell Holmes, who wrote the majority opinion for the Schenck case, frequently dissented, or disagreed, with his more conservative colleagues on the Court. Thus, he won the nickname "The Great Dissenter." Justice Holmes even dissented from his own opinions—or, at least, from the way his fellow justices sometimes applied them.

In Abrams v. United States, a Russian-born American named Jacob Abrams was found guilty of violating the Espionage Act. Abrams had scattered leaflets protesting the sending of U.S. troops into Russia after the Revolution of 1917. Although seven of his colleagues upheld the conviction on the grounds that Abrams presented a "clear and present danger"—Justice Holmes's own words—Holmes disagreed. He insisted that Abrams had a right to his opinion under the First Amendment. Since Abrams had acted during peacetime, his actions posed no danger. (Schenck had acted during wartime and that is why his speech was not protected under the First Amendment.)

In 1927, the Court upheld the conviction of Socialist Benjamin Gitlow, who produced a publication that supported overthrowing the government. Again, Justice Holmes dissented from those who had cited his own words, saying that there was "no present danger of an attempt to overthrow the Government by force" in Gitlow's papers.

Suggestions for further reading

Bowen, Catherine Drinker. Yankee from Olympus: Justice Holmes and His Family. Boston: Little, Brown and Co., 1943.

Burton, David H. Oliver Wendell Holmes, Jr. Boston: Twayne Publishers, Div. of G. K. Hall & Co., 1980.

Commager, Henry Steele, and Milton Cantor. Documents of American History. Englewood Cliffs, NJ: Prentice Hall, 1988.

Friedman, Leon, and Fred L. Israel, eds. The Justices of the United States Supreme Court 1789–1969: Their Lives and Major Opinions. New York: Chelsea House, 1969.

Johnson, John W., ed. Historic U.S. Court Cases, 1690–1990: An Encyclopedia. New York: Garland Publishing, 1992.

Novick, Sheldon M. Honorable Justice: The Life of Oliver Wendell Holmes. Boston: Little, Brown and Co., 1989.

Schnayerson, Robert. The Illustrated History of the Supreme Court of the United States. New York: Harry N. Abrams, 1986.

Witt, Elder, ed. The Supreme Court and Individual Rights. Washington, DC: Congressional Quarterly, 1980.

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Schenck v. United States 1919

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